Jones v Kaney – Supreme Court abolishes immunity [2011] UKSC13 www.bailii.org/uk/cases/UKSC/2011/13.html

The Supreme Court has abolished an expert’s immunity from suit concerning breaches of duty, whether in contract or tort, in connection with their participation in legal proceedings. An expert can now be sued for negligence concerning pre-trial work intimately connected with the case, his oral evidence in court, the contents of a report adopted in evidence and concessions made in an experts’ meeting or a joint statement.

The claimant brought a personal injury claim following a road accident. An issue arose as to whether he had suffered post traumatic stress disorder (PTSD). The defendant clinical psychologist initially reported that the claimant had symptoms that suggested a diagnosis of PTSD whilst the expert for the defendants concluded that he was exaggerating his symptoms.

Following a telephone conversation with the defendant’s expert, the defendant psychologist, Dr Kaney, signed a joint statement prepared by the defendant’s expert. The statement stated that she had found the claimant to be “very deceptive and deceitful in his reporting" and that the experts agreed that this was suggestive of conscious mechanisms and raised doubts over whether his subjective reporting was genuine. There were several problems with the joint statement, not least that Dr Kaney had not seen the other expert’s report at the time of the conversation, the statement didn’t reflect what she had agreed on the telephone and it was still her view that the claimant had suffered from PTSD which was now resolved.

As a result of the damaging nature of the joint statement and the inability of the claimant’s solicitors to persuade the judge that Dr Kaney should no longer act as an expert in the proceedings, the claim was settled for considerably less than would have been the case if she had not signed the joint statement.

At first instance, the judge held that he was bound by the Court of Appeal decision in Stanton v Callaghan and struck out the claim. He certified the case as one suitable for a leap-frog appeal to the Supreme Court under section 12 Administration of Justice Act 1969.

The primary rationale for the centuries-old immunity of experts was a concern that an expert might be reluctant to give evidence contrary to his client's interest. The majority of the Supreme Court rejected this rationale on the ground that (particularly since the introduction of CPR 35) there is no conflict between the duties owed to the client and to the court. Advocates’ immunity from suit was removed by the House of Lords in Hall v Simons (2000) and this has shown that the removal of immunity is unlikely to diminish experts' ability or willingness to carry out their duty. Beneficial effects of the change should be greater care by experts in the preparation of their reports and, as Lord Brown put it, “a sharpened awareness of the risk of pitching their initial views of the merits of their client’s case too high or too inflexibly, lest these views come to expose and embarrass them at a later date”. Immunity from claims in defamation and the immunity of factual witnesses are not affected by this decision.

The minority (Lady Hale and Lord Hope) were concerned about the understandable but usually unjustifiable desire of a disappointed litigant to blame someone else for his lack of success in court. Given the lack of reliable evidence about what the effects of the abolition of the immunity might be, they preferred to leave any reform, if needed, to Parliament.

Comment

This decision was inevitable given the widely-accepted need for reform and the unacceptable inability to give a party redress when negligence on the part of an expert deprived a litigant of full compensation for their loss. The immunity was questioned by the Court of Appeal in 2006 in Meadow v General Medical Council. Professor Sir Roy Meadow was removed from the register after he gave flawed statistical evidence in the trial of Sally Clark who, as a result, was wrongfully convicted of killing her two sons. The court decided, despite the fear expressed by the judge below that the GMC’s findings against Meadow had increased the reluctance of medical practitioners to involve themselves in court proceedings, that there should be no extension of immunity from suit to disciplinary proceedings.

There are different views about whether a flood of claims against experts will result. This was anticipated after the removal of advocates’ immunity but didn’t happen even though the decision was held to have removed the immunity from the date on which the negligent conduct of the defendant barristers occurred, namely 1991 (Awoyomi v Radford). On that basis, experts’ immunity ended in November 2005 when Dr Kaney signed the joint statement and claims relating to conduct from that date are not yet time barred.

What will change is the relationship between solicitors and experts. Experts will seek to limit or exclude their liability and, in addition to choosing an expert properly qualified to act in the case, solicitors will have a duty to their client to consider the terms on which an expert is engaged and to protect their interests when choosing a particular expert. If a claim is made against an expert, a contribution claim against the solicitor relating, for example, to their instructions could result.